“The Price of Freedom”

December 16th, 2012

From the President’s remarks tonight at the Newtown memorial service:

We can’t tolerate this anymore. These tragedies must end. And to end them, we must change. We will be told that the causes of such violence are complex, and that is true. No single law — no set of laws can eliminate evil from the world, or prevent every senseless act of violence in our society.

But that can’t be an excuse for inaction. Surely, we can do better than this. If there is even one step we can take to save another child, or another parent, or another town, from the grief that has visited Tucson, and Aurora, and Oak Creek, and Newtown, and communities from Columbine to Blacksburg before that — then surely we have an obligation to try.

In the coming weeks, I will use whatever power this office holds to engage my fellow citizens — from law enforcement to mental health professionals to parents and educators — in an effort aimed at preventing more tragedies like this. Because what choice do we have? We can’t accept events like this as routine. Are we really prepared to say that we’re powerless in the face of such carnage, that the politics are too hard? Are we prepared to say that such violence visited on our children year after year after year is somehow the price of our freedom?

My thoughts on the price, and related social costs of freedom are discussed in my 2011 article in the Harvard Journal of Law & Public Policy, The Constitutionality of Social Cost.

Here is the abstract:

To understand the future of the Second Amendment, one must ask, “Why is this right different from all other rights?” In District of Columbia v. Heller and McDonald v. City of Chicago, the majority and dissenting opinions differed wildly over the historical pedigree of the individual right to keep and bear arms, but they agreed that the governmental interest in reducing the risk of danger from firearms should play some role in the constitutional calculus, and that the Second Amendment should be treated differently from other constitutional rights.

At first blush, this may make sense. Guns can be dangerous if misused. As Justice Breyer noted in McDonald, “[T]he carrying of arms . . . often puts others’ lives at risk.” Because a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” when construing the Second Amendment, it would seem straightforward that courts take into consideration the potential social cost, or presumed negative externalities, of private ownership of firearms. So obvious, in fact, that courts and pundits perfunctorily gloss over the constitutionality of limiting liberty in order to minimize social costs. This judicial oversight is glaring, and it has contributed in no small part to the currently disjointed state of Second Amendment jurisprudence.

Although the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that yield negative externalities. The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. The freedom of the press permits the media to report on matters that may harm national security. The freedom of association allows people to congregate to advocate for certain types of violence . The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of the fruits and instrumentalities of crime with impunity. Inculpatory evidence seized in violation of this right is generally inadmissible during trial, permitting crimes to go unpunished. Likewise, a violation of a person’s Miranda rights renders certain confessions — even an uncoerced inculpatory confession — inadmissible.

Procedural rights during the criminal trial — including the right to grand jury indictment, the right against self-incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, and the right of trial by jury — all make the prosecution of culpable defendants significantly harder. The Due Process Clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution. The right to non-excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions and may allow them to abscond before trial. The right against cruel and unusual punishments removes certain forms of retribution from the quiver of the state, thereby limiting the range of punishments for those found guilty of a crime. The right of habeas corpus ensures that a person — however dangerous — cannot be indefinitely without proper procedures. Liberty’s harm to society takes many forms — not just from the exercise of the right to keep and bear arms.

These precedents show how the Court balances freedom and the harm that may result from its exercise. Although a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” this concern is not constitutionally sacrosanct.

This Article explores the constitutional dimensions of the social cost of liberty. Although some have suggested that courts should look to the First Amendment for interpretational guidance for the Second Amendment, I propose a more holistic approach: look to the entire Bill of Rights. Liberty interests certainly vary by type, but the Court’s precedents balancing those interests against society’s need for safety and security coalesce into different schools. By reconceptualizing the right to keep and bear arms through the lens of social cost, in light of over a century of Supreme Court jurisprudence, one can see that despite its dangerous potential, the Second Amendment is not so different from all other rights; accordingly, it should not be treated differently

This Article proceeds in five parts. Part I explores a Coasean view of freedom that balances liberties and externalities, and introduces the concept of the constitutionality of social cost. Part II provides an overview of the competing views of social cost in Heller and McDonald, focusing on Justice Breyer’s balancing test and Justice Scalia’s pragmatic dicta. Part III considers the loneliness of the Second Amendment in the Bill of Rights and confronts many of the arguments of the dissenting Justices that the majority did not refute. Part IV views the Second Amendment through the lens of the constitutionality of social cost and considers the “wide variety of constitutional contexts [in which the Court] found . . . public-safety concerns sufficiently forceful to justify restrictions on individual liberties.”

Building on Parts I–IV, Part V provides a roadmap for the development of Second Amendment jurisprudence going forward. Second Amendment challenges should be bifurcated based on the social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of persons lacking a propensity for violence, the burden of persuasion should remain with the state, and stricter judicial scrutiny is warranted. For those who have demonstrated a propensity for violence and who are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicial scrutiny is appropriate. Under such an approach, which fits snugly inside Heller’s rubric, the Second Amendment can develop and assume its equal station among our most cherished constitutional rights.

Also related is an unpublished follow-up article I wrote, titled Judging the Constitutionality of Social Cost. Here is the abstract:

The tiers of judicial scrutiny represent the Supreme Court’s attempts to balance three important concerns–individual liberty, collective safety, and social cost. The relationship between liberty and safety has been ably explored; however, considerations of social cost — a factor that has been integral in the Supreme Court’s balancing of liberty and security — has been neglected. Understanding the interaction between liberty, safety, and social costs, reveals insight into how the Supreme Court has fashioned the tiers of scrutiny, and judicial review more broadly.

The Supreme Court has recognized two types of social cost, that I have labeled liberty costs and security costs. First, liberty costs, refer to the risk of negative externalities to society as a whole that can result from individuals exercising liberty. Second, safety costs, refer to the risk of negative externalities to individual liberty that can result from the state providing for collective safety.

The Supreme Court employs the tiers of scrutiny when the liberty interests of an individual (or group of individuals) are weighed against the interests of the state to provide for collective safety (defined broadly as the police powers — health, safety, and morals). Scrutiny is effectively a question of burdens — which party’s interests receive judicial deference, and which party’s interests are met with judicial skepticism. Or, to state it differently, which party bears the burden of justifying its high social costs. These relationships are plotted on a graph I labeled the Social Cost Frontier. The frontier depicts judicial review and the relationship between the tiers of scrutiny and social cost, with respect to Miranda, the exclusionary rule, the overbreadth doctrine, unprotected speech, and commercial speech.

Social cost further explains how the court shifts between the counter-majoritarian difficulty and representation reinforcement. Which branch of government is in the better position to assess social costs — the legislature, or the courts? Or more precisely, should the court defer to the state’s assessment of social cost, or defer to the individual’s assessment, or engage in an independent inquiry. Ultimately, this determination is largely informed by a given Justice’s view of liberty and safety costs with respect to Footnote Four of United States v. Carolene Products, and Professor John Hart Ely’s “representation reinforcement” theory of the Constitution. Even with the judiciary’s assumption of this role, certain cognitive and confirmation biases dictate that, in the words of Frédéric Bastiat, there are seen, and unseen costs by the Justices. The costs that are unseen, are often the costs that the Justice is inclined to disregard. How a Justice choose to see, and not see, certain social costs — rather than abstract terms like tiers of scrutiny, or equal protection, or due process — explains how some of the most important constitutional issues of our time can be so divisive.

The Supreme Court’s reliance on social cost, without ever fully defining it, illustrates the normative appeal of this rubric. No one likes costs, they’re bad. Identifying costs, and using them as a rationale for a judicial decision is quite attract. Yet, by failing to define these costs — and what considerations go into calculating them — the Court, and the academy, has unfortunately elided over an important jurisprudential step in numerous cases involving the Constitution. Further, by assuming the role of assessing social cost, and either grating the costs deference or skepticism, the Court has succeeded at its institutional aim at minimizing social cost in the absence of judicial intervention. For when either cost grows too large, the role — and need — of courts disappears. In their efforts to keep this balance in check, courts aim to maintain their legitimacy, and indeed relatedly, their need for existence. If courts step too far in either direction, their legitimacy, and place in society decreases